"Mr. Gouveneur Morris's opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any time in office. Our Executive was not like a magistrate having a life interest, much less like one having an hereditary interest in his office? He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard against it by displacing him. One would think the King of England well secured against bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery; corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the Prime Minister. The people are the King. When we make him amenable to justice, however, we should take care to provide some mode that will not make him dependent on the Legislature.'

On July 23, 1787, it was moved and seconded "that the proceedings of the Convention for the establishment of a national government, except that respects the Supreme Executive, be referred to a Committee for the purpose of reporting a Constitution conformably to the Proceedings aforesaid—which passed unanimously in the affirmative".39 This Committee known thereafter as the "Committee of Detail," consisted of John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut, and James Wilson of Pennsylvania.40 On the next day the Committee of the Whole was discharged "from acting on the propositions" of Mr. Pinckney and Mr. Patterson, which were referred to the Committee of Detail.41

On July 26, 1787, the Convention again approved the provision that the President should "be removable on impeachment and conviction of malpractice and neglect of duty".42

The matters relative to the "Supreme Executive" were also referred to the Committee of Detail on the same day.43 That Committee reported a draft of a constitution August 6, 1787, including the following:

" 44

"Art. IV, Sec. 6. The House of Representatives shall have the sole power of impeachment. "Art. X, Sec. 2. He (the President) shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment. He shall be removed from his office on impeachment by the House of Representatives, and conviction in the Supreme Court, of treason, bribery or corruption. 15

"Art. XI, Sec. 3. The jurisdiction of the Supreme Court shall extend . . . to the trial of impeachments of Officers of the United States. . . . In cases of impeachment the jurisdiction shall be original.46

"Art. XI, Sec. 4. The trial of all criminal offences (except in cases of impeachment) shall be in the State where they shall be committed, and shall be by jury.4 "Art. XI, Sec. 5. Judgment, in cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any office of honor, trust or profit, under the United States. But the party convicted shall, nevertheless be liable and subject to indictment, trial, judgment and punishment according to law.48

"Art. XV. Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence." 49

The Convention agreed to Art. IV, Sec. 6 on August 9, 1787,50 apparently without debate so far as the above clause is concerned.

On August 20, 1787, various propositions were referred to the Committee of Detail, among them the following:

"Each of the officers above mentioned [i.e. the President and his Cabinet] shall be liable to impeachment and removal from office for neglect of duty, malversation or corruption.

.

"That the Committee be directed to report . . a mode for trying the supreme Judges in cases of impeachment." 51

Two days later that Committee reported in favor of a Privy-Council for the President, which included the cabinet officers, but said nothing as to their impeachment, and also reported that "the Judges of the Supreme Court shall be triable by the Senate, on impeachment by the House of Representatives " 52

On August 25, 1787, the Convention, without debate, struck out the words "but his pardon shall not be pleadable in bar of an impeachment" in Art. X, Sec. 2, and inserted in lieu thereof "except in cases of impeachment".53 On August 27, 1787, consideration of the last clause of Art. X, Sec. 2, and Art. XI, Sec. 3, was postponed,54 at the suggestion of Gouveneur Morris, because he thought the Supreme Court was not a proper tribunal to try an impeachment of the President, especially if, as was then being considered, the Chief Justice was to be a member of the proposed Privy Council.55 The next day Art. XI, Sec. 4, was amended to read: "The trial of all crimes (except in cases of impeachment) shall be by jury-and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, then the trial shall be at such place or places as the Legislature may direct." 56

Art. XV being taken up, the words "high misdemeanor" were struck out, and "other crimes" inserted, in order to comprehend all proper cases, it being doubtful whether "high misdemeanor" had not a technical meaning too limited. 57 On August 31, 1787, it was moved and seconded "to refer such parts of the Constitution as have been postponed, and such parts of reports as have not been acted on to a Committee of a Member from each State", which passed in the affirmative and a Committee was appointed by ballot of the honorable Mr. Gilman, Mr. King, Mr. Sherman, Mr. Brearly, Mr. G. Morris, Mr. Dickinson, Mr. Carroll, Mr. Madison, Mr. Williamson, Mr. Butler, and Mr. Baldwin.58 That committee was known as the Committee of Eleven, and reported on September 4, 1787:

"In the place of the 9th article, 1st section to be inserted 'The Senate of the United States shall have power to try all impeachments; but no person shall be convicted without the concurrence of two-thirds of the members present.'

**

*

"Sec. 3. The Vice-President shall be ex officio, President of the Senate, except when they sit to try the impeachment of the President, in which case the Chief Justice shall preside." 60

"The latter part of the 2nd section, 10th article to read as follows: 'He shall be removed from his office on impeachment by the House of Representatives and conviction by the Senate, for treason or bribery, and in case of his removal as aforesaid, death, absence, resignation or inability to discharge the powers or duties of his office the Vice-President shall exercise those powers and duties until another President be chosen, or until the inability of the President be removed' "' 61 In debating the changes thus made, James Wilson of Pennsylvania said on September 6, 1787:

"In allowing them (the Senate) to make the Executive and Judiciary appointments, to be the Court of impeachments, and to make treaties which are to be laws of the land, the Legislative, Executive and Judiciary powers are all blended in one branch of the Government. . . . According to the plan as it now stands, the President will not be the man of the people as he ought to be, but the Minion of the Senate." 62

51 Ibid 337.

52 Ibid 367.

53 Ibid 411.

54 2 Farrand 422-423.

55 Ibid 427.

56 Ibid 435.

57 Ibid 443.

58 Ibid 473.

59 Ibid 493.

60 Ibid.

61 2 Farrand 495.

62 Ibid 522-523.

The Convention, however, approved the report of the committee in the respect referred to.

On September 8, 1787, the journal shows 63 that in the Convention it was moved and seconded to insert the words "or other high crimes and misdemeanors against the State" after the word "bribery", which passed in the affirmative. It was moved to strike out the words "by the Senate" after the word "conviction", which passed in the negative. It was moved and seconded to strike out the word "State" after the word "against" and to insert the words "United States", which passed in the affirmative unanimously. On the question to agree to the last clause of the report it passed in the affirmative. It was moved and seconded to add the following clause after the words "United States": "The Vice-President and other civil officers of the United States shall be removed from office on impeachment and conviction as aforesaid", which passed in the affirmative unanimously. In the place of the first section of the ninth article it was moved to insert: "The Senate of the United States shall have power to try all impeachments: but no person shall be convicted without the concurrence of two-thirds of the Members present: and every Member shall be on oath", which passed in the affirmative. It was moved and seconded to appoint a committee of five "to revise the style of and arrange the articles agreed to by the House", which passed in the affirmative, and a committee was appointed by ballot of Mr. Johnson, Mr. Hamilton, Mr. G. Morris, Mr. Madison, and Mr. King. That committee was entitled the "Committee of Style and Arrangement." Mr. Madison in his report of the debate says:

65

"The clause referring to the Senate, the trial of impeachments against the President, for treason and bribery, was taken up.

"Colonel Mason. Why is the provision restrained to treason and bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of treason. Attempts to subvert the Constitution may not be treason as above defined . . As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He moved to add after 'bribery' 'or maladministration'. Mr. Berry seconded him ..

"Mr. Madison. So vague a term will be equivalent to a tenure during pleasure of the Senate.

"Mr. Gouveneur Morris. It will not be put in force and can do no harm . . An election of every four years will prevent maladministration.

"Colonel Mason withdrew 'maladministration' and substituted 'other high crimes and misdemeanors' (against the State).

"On the question thus altered:

"N. H. aye, Mas. aye, Ct. aye, (N.J. no.) Pa. no, Del. no, Md. aye, Va, aye, N.C. aye, S.C. aye, Del. aye (Ayes-8; noes 3).

"Mr. Madison objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemeanor. The President under these circumstances was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part.

"Mr. Gouveneur Morris thought no other tribunal than the Senate could be trusted. The Supreme Court were too few in number and might be warped or corrupted. He was against a dependence of the Executive on the Legislature, considering the Legislative tyranny the great danger to be apprehended; but there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned

out.

"Mr. Pinckney disapproved of making the Senate the Court of Impeachments, as rendering the President too dependent on the Legislature. If he opposes a favorite law, the two Houses will combine against him, and under the influence of heat and faction throw him out of office.

"Mr. Williamson thought there was more danger of too much lenity than of too much rigour towards the President, considering the number of cases in which the Senate was associated with the President.

"Mr. Sherman regarded the Supreme Court as improper to try the President, because the judges would be appointed by him.

"On motion by Mr. Madison to strike out the word 'by the Senate' after the word 'conviction":

Ibid 545.

64 Farrand 547. Ibid 550-552.

"N. H. no, Mas. no, Ct. no, N. J. no, Pa. aye, Del. no, Md. no, Va. aye, N. C. no, S. C. no, Geo. no (Ayes-2; noes-9).

"In the amendment of Colonel Mason just agreed to, the word 'State' after the words 'misdemeanors against' was struck out, and the words 'United States' inserted (unanimously) in order to remove ambiguity.

"On the question to agree to clause as amended: N. H. aye, May. aye, (Cont. aye,) N. J. aye, Pa. no, (Del. aye,) Md. aye, Va. aye, N. C. aye, S. C. aye, Geo. aye (Ayes-10; noes—1).

"On motion, the Vice-President and other civil officers of the United States shall be removed from office on impeachment and conviction as aforesaid' was added to the cause on the subject of impeachments."

The Committee of Style and Arrangement made its report on September 12, 1787, which, so far as the present matter is concerned, provided as follows: "Art. I, Sec. 2. (d) The House of Representatives shall choose their speaker and other officers; and they shall have the sole power of impeachment.66

"Art. I, Sec. 3. (e) The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two-thirds of the members present.

(f) Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.67

"Art. II, Sec. 2. The President . . . shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.68

"Art. II, Sec. 4. The President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.69

"Art. III, Sec. 1. The Judicial power of the United States... shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges both of the supreme and inferior courts shall hold their offices during good behavior. . . .70

"Art. III, Sec. 2. . . . The trial of all crimes except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed."1

"Art. III, Sec. 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." 72 On September 14, 1787, when that report was under consideration Mr. Rutledge and Mr. Gouveneur Morris moved "that persons impeached be suspended from their office until they be tried and acquitted." Mr. Madison said the President was made too dependent already on the Legislature, by power of one branch to try him in consequence of an impeachment by the other. "This intermediate suspension", he said, "will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing magistrate." Mr. King concurred in the opposition to the amendment and the question to agree was lost." On the next day, September 15, 1787, the Constitution as amended was agreed to by the Convention, and ordered to be engrossed, all the states voting in favor thereof, and in its engrossed form it was approved two days later.75 The only changes from the foregoing were the addition of the words "or affirmation", after the word "oath" in Art. I, Sec. 3, and the exclusion of the word "only" from Art. III, Sec. 3.

66 2 Farrand 501.

67 2 Farrand 592.

68 Ibid 599.

69 Ib 600.id

70 Ibid.

71 Ibid 601. 72 Ibid.

73 Ibid 612-613.

74 2 Farrand 633.

75 Ibid 643-644-647.

The foregoing extracts from the resolutions and debates of the Federal Convention cover, it is believed, all that is reported therein relating strictly to impeachments, and all that have any bearing on the subject in the Constitution as originally adopted. The following, from among the amendments to the Constitution, have however, a bearing upon the matters hereinafter to be considered:

5th Amendment. nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall he be compelled in any criminal case to be a witness against himself."

6th Amendment. "In all criminal prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence."

10th Amendment. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people.”

Under those constitutional provisions we come to the first great question which faces us.

IN WHAT CAPACITY DOES THE SENATE SIT UPON THE TRIAL OF AN IMPEACHMENT?

It would hardly seem that this could be an open question, or worthy of much debate if it were, yet it has been considered and acted upon in two of the impeachments in this country.

When Judge Chase was impeached, the Senate appointed a committee to propose and report rules for the conduct of the trial. In the Memoirs of John Quincy Adams, it is said: 1

"But the words in open Court, and this Court were in the reported rules, and Mr. Giles moved to strike them out on the ground that the Senate, sitting for the trial of an impeachment is not a Court. . . . His motive for this antipathy to the term Court is, that the Senate . . . may be absolved from all the rules and principles which restrain and bind down courts of justice to the practice of justice." That motion was adopted. The motive thus attributed to Senator Giles is not that given by himself. His averred reason was this:

"Impeachment is nothing more than an enquiry, by the two Houses of Congress, whether the office of any public man might not be better filled by another.2 Impeachment was not a criminal prosecution; it was no prosecution at all. A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him.” 3

The matter again came up during the impeachment of President Johnson. It is said in Hinds' Precedents of the House of Representatives.

"In 1868, after mature consideration, the Senate decided that it sat for impeachment trials as the Senate and not as a court. . . . An anxiety lest the Chief Justice might have a vote seems to have led the Senate to drop the words 'High Court of Impeachment' from its rules."

The rules as originally drafted for that trial were entitled, "Rules of Procedure and Practice in the Senate when Sitting as a High Court of Impeachment," and in several places in the body thereof the Senate is called a court. Senator Conkling, through he had in fact helped draft those rules, moved to amend by striking out the word "court," saying, inter alia:

"Why leave it there? If it is a court we do not destroy that character by omitting these superfluities from our rules. If it is not a court we do not clothe it with the ermine or the attributes of a court by putting in the rules that it is so." 5 And recognizing the fact that, in all prior impeachment trials, it had been called the "high court" of impeachment he argued that those words "had been used rather by the Secretary in recording the proceedings than by the Senate itself." Senator Edmunds dissented from this view, and called attention to the fact that on one occasion in the Blount Impeachment, the Senate by formal resolution had called itself a “court of impeachment."

1 Vol. 1, p. 324.

2 Vol. 1, p. 321.

3 Ibid 322.

4 Vol. 3, par. 2057 (1907).

53 Hinds' Precedents 381.

3 Hinds' Precedents 379.

7 Ibid 381.